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Bank Street Theater

In this personal injury action, plaintiff alleges that he tripped and fell over a separate level inside the premises of the Bank Street Theater, then located at 155 Bank Street, New York, New York (the “Theater”). Defendants now move for summary judgment dismissing Plaintiffs complaint.

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action has no merit, sufficient to warrant the court as a matter of law to direct judgment in his or her favor. Thus, the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact.

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact. Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his or her failure to do so. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. The opponent “must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist” and “the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief.

Actionable Defect

Deciding whether a dangerous or defective condition exists on premises and is actionable depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. The court must examine all of the facts presented including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place and circumstances of the injury. Case law holds that the owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection. A height differential alone is insufficient to establish the existence of a dangerous or defective condition for which the property owner could be held liable. The height differential of less than an inch between the defective area and the rest of the landing-was trivial, and plaintiff has not presented any evidence to show that such defect presented a significant hazard, notwithstanding its minimal dimension, by reason of location, adverse weather or lighting conditions, or other circumstances giving it the characteristics of a trap or snare.

When deciding if there are trivial defects the court however should consider whether other conditions exist such as weather, location, or adverse lighting, which make an otherwise trivial defect an actionable hazard. Thus, where there is a height differential coupled with other factors, courts have held that whether a particular bite condition is trivial is an issue to be decided by a jury. Although less than an inch deep, the defect apparently an irregular zig-zag-like depression, between a foot and two feet in length, with sharp rather than gradual edges, is of sufficient magnitude to raise a jury issue.

The location of the depression in a heavily traveled pedestrian walkway renders observation of the defect less likely. It could not be said that the metal plate over which plaintiff tripped which was no more than one-half inch higher than the floor had “none of the characteristics of a trap or a snare (McKenzie v Crossroads Arena, LLC, 291 AD2d 860 [4th Dept 2002]).

In McKenzie, the court denied defendant’s motion for summary judgment which sought dismissal on grounds that plaintiff tripped over a de minimis defect, namely a three quarter height difference between concrete slabs on the sidewalk. The Court concluded that insofar as the height difference was abrupt as opposed to gradual and that said defect was located in a dimly lit area on a misty night, whether this otherwise trivial defect was a hazard was a question of fact to be determined by a jury. In another case, affirming jury verdict in plaintiffs favor where plaintiff fell in a movie theater; that the illumination in passageway was `very dim’; plaintiff could not see the carpet or the floor; no usher was there at the time; plaintiff that she proceeded some 20 or 25 feet beside a railing until she came to an aisle leading to the seats; it was too dark to see a step if one was there; that she walked five or six steps down the aisle and suddenly fell on the first of a series of steps in the aisle, which were not shown to be defective or unusual in construction or location.

Viewing the evidence submitted by the Defendants in the light most favorable to the Plaintiff, Defendants have failed to establish entitlement to summary judgment. While the witness1 testified that there was glow-in-the-dark tape in the aisle, and witness2 testified that the alleged fall occurred during the intermission when the house lights were on, Plaintiff testified that at the time of his accident, the intermission had ended and the houselights were off; no overhead lights were on in the Theater, on the walls, on the floor or on the steps, and the only fight in the Theater at that time came from the stage.

Further, Plaintiff stated that there were no glow-in-the-dark strips on the edge of the platform and there were no lights running along the side of the seats in the Theater. It was not until the lights came on at the end of the performance that Plaintiff was able to see the area over which he tripped. This testimony of a poorly or dimly lit area, coupled with the evidence indicating that the height differential was between ¼ to ½ an inch raises an issue of fact as to whether there existed a trap or nuisance at the Premises which caused Plaintiffs injuries.

Therefore, having failed to establish that the Plaintiffs alleged accident was due to a mere height differential of less than one inch, Defendants are not entitled to summary judgment.

Hence, it is ORDERED that the motion of defendants for an order granting summary judgment dismissing plaintiffs Complaint is denied.

Accidents happen in times and places when not expected, what is unacceptable is when accident was caused by negligence committed by another person. If you have been a victim by another’s fault, you can seek damages for monetary compensation for your loss.

At Stephen Bilkis & Associates, we have Bronx County Personal Injury Lawyers ready to assist you with your claims before courts. Our Bronx County Personal Injury Attorneys will advance you cause and make sure that person responsible will not remain unpunished. Call us at our toll free number or visit our office located in the metropolitan area of New York.

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